Supreme Court should include a diversity seat

July 12, 2005|By Sherrilyn A. Ifill

SINCE THE bruising and surreal experience of Justice Clarence Thomas' nomination and confirmation to the Supreme Court in 1991, African-Americans have resigned ourselves to the reality of being "represented" on the nation's highest court by a black justice who does not share the views that most of us hold about affirmative action, the treatment of prisoners, the government's obligation toward the poor or almost any other matter at the intersection of social policy and law.

But the announcement that Justice Sandra Day O'Connor will retire, coupled with the prospect that Chief Justice William H. Rehnquist will retire shortly as well, should compel us to rethink our complacency. Not because President Bush is more likely than his father to nominate to the court a black justice who shares our views. Rather, because our acquiescence to the notion that we are now "represented" on the court plays to an archaic and manipulative form of racial representation that African-Americans must firmly reject if we are to reassert ourselves as a critical and relevant voice in American politics and law.

When Justice Thurgood Marshall retired from the court, it was universally expected that President George H. W. Bush would choose an African-American to fill what some were describing - at least privately - as "the black seat."

The idea of a "black seat" on the court is not an extraordinary concept.

Courts - especially our nation's highest courts - derive their legitimacy from the public's sense of their integrity and impartiality. Diversity is a critical component of impartiality. The Supreme Court has said that racial and gender diversity in jury venires promotes impartiality by making it less likely that only one perspective dominates jury deliberations.

The same is true for the judiciary.

What blacks and whites valued about Justice Marshall's contribution to the court was not only his race but also his unique understanding of how the law works in the lives of blacks, the poor and other marginalized groups. It was a perspective forged by his experiences as a black man and as a civil rights lawyer representing the most overlooked and disenfranchised members of society for 30 years before joining the bench.

He didn't just know about the lives of the marginalized, he was able to persuasively articulate this reality for his colleagues on the court and for all Americans. The diversity that he brought to the court was the best kind - rich in experiences, personal and professional, that enhanced the court's deliberations and decision-making.

The nomination of Justice Thomas to the seat vacated by Justice Marshall reduced the idea of diversity to its most simplistic and cosmetic terms. One need not question Justice Thomas' race or his authenticity as a black justice to recognize that describing him as "representative" of blacks, when his views reflect those of only 10 percent of the black population, is cynical and crude.

African-Americans have every right to continue to lobby for the nomination of a Supreme Court justice to fill the seat left by Justice Marshall. Let's not call it the "black seat." Let's call it the diversity seat - one to be filled by someone whose personal and professional life has prepared him or her to powerfully and substantively represent the experiences of the marginalized.

Justice Thomas' presence on the court should not act as a bar to the appointment of another black justice to the court who can represent these views. Nor should we limit ourselves to the idea that the diversity seat can be filled only by an African-American. As Latino-American communities prepare to struggle over reported plans to nominate the first Hispanic to the court, they should demand from Mr. Bush a nominee who can speak to and from more than just the narrow constituency the president may seek to reward for its support of his candidacy and election.

Find a Latino to fill Justice Marshall's seat and really bring diversity back to the Supreme Court.

Sherrilyn A. Ifill is a civil rights lawyer and law professor at the University of Maryland School of Law.

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